Jeffrey Rogers

The appellant appealed an arbitrator's order requiring him to pay the respondent's arbitration expenses of $6,558.11 following the dismissal of his claims for accident benefits.

The appellant argued the arbitrator lacked jurisdiction because she was not the hearing arbitrator and erred in her application of the Expense Regulation.

The Director's Delegate dismissed the appeal, finding that the arbitrator had jurisdiction under the Dispute Resolution Practice Code and correctly applied the results-based approach mandated by the Expense Regulation.

The appellant appealed an Arbitrator's order requiring her to pay the insurer's expenses of the arbitration in the amount of $17,755.18.

The appellant argued that the Arbitrator lacked jurisdiction because she was not the hearing arbitrator and that she erred in her application of the Expense Regulation.

The Director's Delegate dismissed the appeal, finding that the Arbitrator had jurisdiction under the Dispute Resolution Practice Code to decide the issue of expenses and correctly applied the prescribed criteria, which focus on the degree of success.

The insurer was entirely successful at the arbitration, and the Arbitrator reasonably reduced the claimed expenses to a proportionate amount.

The appellant appealed an Arbitrator's order that denied an adjournment and dismissed the application for arbitration regarding catastrophic impairment benefits.

After filing the Notice of Appeal, the appellant failed to deliver written submissions or respond to multiple inquiries from the Director's Delegate.

The Director's Delegate concluded that the appellant had abandoned the appeal and dismissed it.

The parties cross-appealed an Arbitrator's decision awarding the insured person all claimed accident benefits, interest, expenses, and a special award.

The Director's Delegate found that the Arbitrator correctly ordered payment of medical benefits and income replacement benefits (IRBs) where the insurer completely failed to respond to the claims, pursuant to the plain meaning of the Statutory Accident Benefits Schedule.

However, the Arbitrator erred in ordering payment where the insurer's response was merely deemed improper, and in failing to calculate the net amount of IRBs payable after deducting post-accident income.

The Delegate also found that while a special award was justified due to the insurer's unreasonable delay, the Arbitrator erred by failing to fix the amount of the award with precision.

Several issues, including the quantum of IRBs and the special award, were remitted for re-hearing.

The appellant's appeal of an arbitrator's order regarding income replacement benefits was previously dismissed.

The respondent insurer sought $4,611.35 for its expenses of the appeal.

The Director's Delegate found the respondent was entitled to its expenses based on its complete success, rejecting the appellant's argument that the unique history of the dispute warranted parties bearing their own expenses.

The Delegate found the claimed amount excessive and fixed the respondent's appeal expenses at $3,500 inclusive of disbursements and HST.

The appellant appealed an Arbitrator's order requiring her to pay the respondent's arbitration expenses of $10,244.44 after she withdrew her application for accident benefits.

The appellant argued the Arbitrator erred in finding the respondent was entirely successful and that her counsel unduly prolonged the proceeding.

The Director's Delegate dismissed the appeal, finding that the withdrawal of all claims constituted complete success for the respondent and that there was evidence to support the finding that the appellant's counsel unduly prolonged the proceeding by failing to respond to correspondence.

The appellant appealed an arbitrator's decision finding that the parties did not enter into a binding settlement of her claims for statutory accident benefits arising from two motor vehicle accidents.

The parties had agreed to settle the claims for $18,000 but did not discuss how the funds would be allocated between the two accidents.

When the insurer provided a release allocating most of the funds to the second accident, the appellant refused to sign because it would prejudice her tort claim regarding the first accident.

The Director's Delegate dismissed the appeal, upholding the arbitrator's finding that there was no meeting of the minds on the essential term of allocation, and therefore no valid settlement.

The appellant appealed an arbitrator's decision denying his claims for attendant care and housekeeping benefits.

The appellant failed to order the hearing transcript or deliver written submissions despite multiple extensions and warnings.

The Director's Delegate proceeded with the appeal under Rule 58.1 and dismissed it, finding that the Notice of Appeal made vague allegations of bad faith without identifying any errors of law, as required by section 283(1) of the Insurance Act.

Aviva appealed an arbitrator's decision that the respondent's Long Term Disability (LTD) benefits were 'gross employment income' and thus deductible from his Income Replacement Benefits (IRBs) at 70% of the gross amount.

The Director's Delegate allowed the appeal, finding that the arbitrator breached procedural fairness by deciding the issue on a basis not argued by the parties.

Furthermore, the Delegate held that LTD benefits are 'other income replacement assistance' under the Statutory Accident Benefits Schedule, not 'gross employment income', and therefore the gross amount of the LTD benefits must be deducted from the IRBs.

The insurer appealed an arbitrator's decision regarding jurisdiction to calculate interest and the quantum of expert witness expenses.

The parties agreed on the expense amounts and that the arbitrator had jurisdiction to determine interest.

The Director's Delegate resolved the remaining interest calculation disputes, finding that no interest accrues on a special award prior to the date of the order, and that an earlier expense award against the claimant could not be set off against benefits until the final order determining the cause was issued.

The appellant's appeal of an arbitrator's order was previously dismissed.

The respondent insurer sought its expenses of the appeal.

The Director's Delegate considered the criteria under section 12(2) of the Expense Regulation, noting the respondent's complete success and the conduct of the appellant's representative which unnecessarily prolonged the hearing and post-hearing process.

The Delegate rejected the appellant's arguments regarding proportionality and access to justice, finding them inapplicable or outweighed by the representative's conduct.

The appellant was ordered to pay the respondent's appeal expenses fixed at $3,500 inclusive of disbursements and HST.

The appellant appealed an Arbitrator's decision denying him further income replacement benefits (IRBs) on the basis that his post-accident income from self-employment reduced his entitlement.

The appellant argued the Arbitrator erred in finding he was self-employed and in attributing 50% of the business's post-accident profit to him.

The Director's Delegate dismissed the appeal, finding no error of law.

The Arbitrator's findings of fact were supported by ample evidence, including the appellant's tax returns, and the Arbitrator correctly applied the accounting principle of consistency to calculate the post-accident income.

The respondent sought appeal expenses of $3,500 following the dismissal of the appellant's appeal.

The parties agreed on the quantum but disputed the timing of payment.

The appellant argued payment should be delayed pending its application for judicial review, or awarded in the cause.

The Director's Delegate ordered the expenses payable forthwith, noting that a judicial review does not automatically stay the process and the respondent was entirely successful on a discrete issue.

The insurer appealed the Arbitrator's finding that the insured sustained a catastrophic impairment, arguing the Arbitrator applied the wrong causation test.

The insured cross-appealed the denial of Non-Earner Benefits, Housekeeping, and Attendant Care Benefits.

The Director's Delegate held that the 'but for' test, not the 'material contribution' test, is the correct causation test in accident benefits cases.

The Delegate found the Arbitrator misapprehended critical evidence regarding both the catastrophic impairment and Non-Earner Benefits claims, and remitted those issues for re-hearing.

The denial of Housekeeping and Attendant Care Benefits was upheld as the Arbitrator reasonably found the expenses were not incurred.

The appellant appealed an arbitrator's order precluding him from proceeding to arbitration for failure to attend insurer examinations (IEs) and finding his claim for attendant care benefits was time-barred.

The appellant was incarcerated at the time of the scheduled IE.

The Director's Delegate held that the arbitrator erred in refusing to consider the appellant's reasonable excuse for non-attendance.

The Delegate found that incarceration was a reasonable excuse, and the appellant had no duty to reschedule the IE upon his release; his only duty was to attend a properly scheduled IE.

The Delegate also found that the attendant care benefits claim was not time-barred, as it was for a limited period ending before the insurer's denial, and a formal denial is not a prerequisite for a dispute.

The appeal was allowed and the arbitrator's order was rescinded.

The appellant appealed an Arbitrator's order regarding statutory accident benefits, seeking clarification on whether a 50% special award applied to medical benefits in excess of his $100,000 policy limit.

The Director's Delegate dismissed the appeal, finding no error of law.

The Delegate held that the Arbitrator's jurisdiction to make a special award is strictly limited by the insured's statutory entitlement to benefits under the policy limits, pursuant to s. 282(10) of the Insurance Act.

The Arbitrator could not have ordered a special award on benefits to which the appellant was not entitled.

The appellant appealed an Arbitrator's order dismissing her arbitration for statutory accident benefits due to her failure to attend insurer examinations (IEs).

The appellant argued the Arbitrator breached procedural fairness, the IEs were not reasonably necessary, the insurer was precluded from relying on the Minor Injury Guideline (MIG), and the IE notices lacked valid medical reasons.

The Director's Delegate dismissed the appeal, finding no breach of procedural fairness and that the insurer had a prima facie right to request the IEs.

The Delegate upheld the Arbitrator's findings that the insurer did not waive its right to rely on the MIG by approving treatment within the $3,500 limit, and that the IE notices provided sufficient medical reasons by asserting the injuries fell within the MIG definition.

Preclusion from arbitration was confirmed as the mandatory remedy under section 55 of the Schedule.

The appellant insurer appealed an arbitrator's order refusing to dismiss the respondent's arbitration on the basis of the Doctrine of Laches.

The respondent had rescinded a 2004 settlement in 2014, alleging the insurer failed to provide a Settlement Disclosure Notice as required by the Settlement Regulation.

The Director's Delegate upheld the arbitrator's decision, finding that the statutory right to rescind a settlement is a legal right, not an equitable one, and therefore the equitable Doctrine of Laches cannot be applied to bar the claim.

The appeal was dismissed.

The appellant appealed an Arbitrator's order dismissing her arbitration for Non-Earner Benefits on the basis that she failed to complete an insurer examination under s. 44 of the Statutory Accident Benefits Schedule.

The Director's Delegate allowed the appeal, finding that the Arbitrator erred by ruling that the circumstances leading to the examination were irrelevant and by failing to consider whether the examination was reasonably necessary.

The issues of entitlement to Non-Earner Benefits and a special award were remitted for a de novo re-hearing before a different Arbitrator.

The appellant appealed an arbitrator's decision dismissing claims for income replacement benefits, medical benefits, and a special award following a motor vehicle accident.

The Director's Delegate found no error of law, noting that the appellant failed to prove any qualifying income for the income replacement benefits and that uncontradicted expert evidence supported the denial of the medical benefits.

The appeal was dismissed, and the appellant was ordered to pay $2,800 in appeal expenses to the insurer.